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2021 (3) TMI 737 - HC - Income TaxSet off of brought forward of business loss against capital gain arising on sale of business asset used for the purpose of business - Whether the Tribunal was justified in law in not holding that the income arising out of sale of business assets has the character of business income, and consequently the income though assessed as capital gain is entitled to set off against the carry forward business loss on the facts and circumstances of the case? - HELD THAT:- It is pertinent to note that proviso to Section 72(1)(i) was omitted by Finance Act, 1999 with effect from 01.04.2000. Therefore, for the Assessment Year in question i.e., 2003-04, the assessee was not required to have carried on the business for the purposes of set off of brought forward business. It is well settled rule of statutory interpretation that intention of statute has to be gathered from the language employed by the legislature which means attention has to be paid to what has been said and what has not been said. Section 72(1) of the Act employs the expression computation 'under the head profits and gains or profession', whereas, Section 72(1)(i) does not use the expression under the head. Thus, the legislature has consciously left it open that any income from business though classified under any other head can still be entitled to the benefit of set off. In COCANADA RADHASWAMI BANK LTD [1965 (4) TMI 11 - SUPREME COURT] the Supreme Court dealt with Section 24(2) of the Act which is parimateria with Section 72 of the Act. Therefore, the aforesaid decision applies to the fact situation of the case. In view of aforesaid enunciation of law, it is evident that the assessee is entitled to set off brought forward loss against income which has the attributes of business income even though the same is assessable to tax under a head other than profits and gains from business. Therefore, the substantial questions of law 1 and 2 are answered in favour of the assessee and against the revenue. Notice issued under section 148 - HELD THAT:- No order has been passed under Section 254(1) of the Act and the order answering the reference cannot be termed as an order under Section 254(1) of the Act. Therefore, we are not inclined to examine the validity of the proceedings under Section 148 of the Act as on the issue of validity of the aforesaid finding, the tribunal has to record its findings. Therefore, in our opinion the matter requires to the remitted to the final fact finding authority under the Act for recording the findings on merits with regard to remaining two substantial questions of law. Therefore, we do not propose to answer the substantial questions of law Nos.3 and 4.
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